United States v. Rodriguez-Terminal

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-20646
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS RODRIGUEZ-TERMINAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-54-1
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Luis Rodriguez-Terminal (Rodriguez) appeals his guilty-plea
conviction and sentence for illegal reentry following
deportation. Rodriguez argues that the sentencing provisions of
8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Rodriguez correctly
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for Supreme Court review. See Apprendi, 530 U.S. at
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-20646
-2-
489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
Rodriguez also contends that the district court erred in
imposing a sentence pursuant to a belief that the Sentencing
Guidelines were mandatory, in violation of United States v.
Booker, 125 S. Ct. 738, 764-65 (2005). In the district court,
Rodriguez argued that his sentence was improperly enhanced on the
basis of his prior conviction for a crime of violence, in
contravention of Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004). This court need not decide whether this objection
preserved a mandatory-sentencing-guideline argument for appeal,
as his claims would succeed even under plain error review.
Under a plain-error standard, the defendant bears the burden
of “establish[ing] that the error affected the outcome of the
district court proceedings.” United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005)(internal
quotation marks and citation omitted), cert. denied, 126 S. Ct.
267 (2005); see also United States v. Cruz, 418 F.3d 481, 485
(5th Cir. 2005). In the instant case, the district court opined
that in the absence of the Sentencing Guidelines, it would have
imposed a lesser sentence than that called for under the
Guidelines. Rodriguez has shown that this error had a
substantial effect on his sentence. As a result, Rodriguez’s
sentence is VACATED and the case is REMANDED for further
proceedings. See Cruz, 418 F.3d at 485.